Background

Affirmative action refers to policies which seek to positively discriminate towards racial, ethnic, gender, or other groups that may be underrepresented or have been discriminated against in the past. In the U.S. affirmative action is typically used in the admissions process of higher education institutions to help increase racial diversity at universities. 

Though race-based affirmative action has existed since the 1960s, its presence has grown over the several decades with it now being outlawed in 9 states, largely through ballot measures. Affirmative action policies are currently federally legal based on the precedent of Supreme Court cases Regents of the University of California v. Bakke in 1978, Gratz v. Bollinger and Grutter v. Bollinger (2003), and Fisher v. University of Texas II (2013). The Supreme Court established limitations such as banning ‘quotas’, or setting aside a specific number of seats for certain minority groups (per Bakke), as well as awarding large amounts of bonus points to applicants with certain racial identities (per Gratz). Furthermore, courts have taken the stance that although increasing diversity and reducing discrimination in admissions is important, universities should seek out easier, more effective ways to achieve those goals aside from affirmative action.

Policies can be enacted at the public level, or in private institutions. In the upcoming U.S. Supreme Court cases Students for Fair Admissions v. Harvard (a private college), and v. University of North Carolina (a public one) the difference between private and public is a key consideration in allowing the use of race-based affirmative action policies. Since the universities here both use race-based affirmative action policies, and they both receive some sort of federal funding (Harvard less so than public school UNC), they are being challenged for violating Title VI of the Civil Rights Act of 1964, by allegedly discriminating against Asian and White applicants in favor of applicants from more underrepresented groups.

Arguments in Favor

Arguments in favor largely center around the importance of racial diversity on college campuses, and affirmative action’s essential role in supporting it. Some focus on remediation, or rather the use of positive discrimination to help rectify a history of inequality that could pose difficulty in certain minority groups being adequately represented. For example, Black students were traditionally excluded from many institutions of higher education. Although those policies were reversed, current generations may find it harder to be accepted in race-blind admissions programs because they don’t have the benefit of generational knowledge or legacy admissions. Others point to statistics showing minority groups are underrepresented at universities in states where affirmative action has been banned, such as California. For example, underrepresented minorities made up more than half of UCLA’s admitted students in 1995, and dropped to 24% after affirmative action was banned in 1998. 

Legally, supporters also argue that affirmative action is the best available and most ‘narrowly tailored’ (accomplishes only the original goal of the policy) solution to underrepresentation in this sphere.

Arguments in Opposition

Many who oppose affirmative action still value racial diversity in higher education. However, they assert that although there has been discrimination that challenges minority applicants, affirmative action’s discrimination against Asian and White applicants who bear no blame for their counterpart’s difficulties is unjustified. Meanwhile, others note representation steadily improving in recent years even in states without affirmative action. California’s 2022 admitted student rates are often cited:

• 5.7% Black (from 4.9% 5 years prior and compared to 5.6% of CA college-aged residents)
• 0.6% American Indian (from 0.5% 5 years prior and compared to 0.3% of CA college-aged residents)
• 37% Latino (from 33% 5 years prior and compared to 50.1% of CA college-aged residents).

Many believe affirmative action policies prevent schools from simply admitting the students with the most merit, which could elevate racial tensions. Additionally, with a history of voters rejecting affirmative action policies at the state level, many tout public polls which show a majority lack support. Lastly, opponents posit that there are better alternatives to promote diversity at college campuses that are less legally controversial, such as a focus on socioeconomic status instead of race, increased college recruitment and outreach, or automatically admitting the top n% of high school graduates.

Looking Ahead

Race-based affirmative action in higher education admissions has perhaps never been more topical than it is right now with its fate in the hands of the U.S. Supreme Court. The current conservative-dominated court is seen as a major opportunity to dismantle affirmative action nationally. If it is dismantled, other programs that work towards the same goals will likely develop.